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June 2018
Quick Reference - Workplace Sexual Harassment WHAT YOU NEED TO KNOW…..WHAT YOU CAN DO
A collection of best blogs published by KelpHR over a period of time
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As enshrined in the Preamble to the Constitution of India,” equality of status
and opportunity” mush be secured for all its citizens; equality of every person
under the law is guaranteed by Article 14 of the Constitution. A safe workplace
is therefore a woman’s legal right.
Frequently employees face sexual harassment but many not be aware of their
rights and there is something they can do about it. Thus this handbook by Kelp
HR is designed for every employee working in all kinds of
workplaces/organization/institutions to serves as an introduction in detail of
the Act, the key players involved in the complaint mechanism, the monitoring
requirement as per the act and the best practices on sexual harassment at the
workplace.
This handbook is a compilation of some of most read blogs published over a
period of time.
“The meaning and content of the fundamental
rights guaranteed in the Constitution of India
are of sufficient amplitudes to encompass all
facets of gender equity….”
Late Chief Justice J.S. Verma, Supreme Court of India, Vishaka v. State of
Rajasthan
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Table of Contents
WHAT IS SEXUAL HARASSMENT ACT? ........................................................................................... 4
WHAT IS VISHAKA CASE AND VISHAKA GUIDELINES? .................................................................... 4
WHY SHOULD EMPLOYERS BE COMPLIANT TO THE ACT? ............................................................... 5
4 KEY STEPS TO BE COMPLIANT WITH THE LAW ............................................................................ 5
POSH ANNUAL REPORT FILING SIMPLIFIED ................................................................................... 6
PENALTY FOR NON-COMPLIANCE ................................................................................................. 9
IF YOU ARE VICTIM, HOW TO DEAL WITH SEXUAL HARASSMENT ................................................. 10 WILL I LOSE MY JOB? ............................................................................................................................. 11 WHY SHOULD I COMPLAIN? .................................................................................................................... 11
ROLE OF INTERNAL COMMITTEE AT WORKPLACE ........................................................................ 14
WHAT IF THE WITNESS REFUSES TO SPEAK IN AN INTERNAL COMMITTEE INQUIRY? .................... 15 WITNESS’S RIGHT TO SILENCE. ................................................................................................................ 15 REASONS FOR WITNESS TO TURN HOSTILE OR STAY SILENT: .......................................................................... 15 HOSTILE WITNESSES: JUDICIAL REMEDY ................................................................................................... 16
UNRAVELLING THE INTRICACIES OF THE ANTI-SEXUAL HARASSMENT ACT ................................... 17
CONCLUSION: ............................................................................................................................ 19
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What is Sexual Harassment Act?
As stated by the act, “An Act to provide protection against Sexual harassment
of women at workplace and for Prevention and redressal of complaints of
Sexual harassment and for matters connected therewith and incidental
thereto.”
The Act will ensure that women are protected against sexual harassment at all
the work places, be it in public or private. This will contribute to realisation of
their right to gender equality, life and liberty and equality in working
conditions everywhere. The sense of security at the workplace will improve
women’s participation in work, resulting in their economic empowerment and
inclusive growth.
What is Vishaka case and Vishaka guidelines?
Vishaka is the Women’s rights group that filed a PIL in Supreme Court of India–
the case of Bhandari Devi Vs. the state of Rajasthan in 1997. Bhanwari Devi
(from a potter community) who tried to prevent child marriage as part of her
duties as a worker of the Women Development Programme was raped by the
landlords of the community in order to teach her a lesson . The rape survivor
did not get justice from Rajasthan High Court and the rapists were allowed to
go free.
Thus resulting in Vishaka guidelines, for dealing with sexual harassment of
women at the workplace. The verdict defined sexual harassment, laid down
duties of employers in dealing with complaints and stipulated formation of
committees to dispose of complaints from victims of harassment.
Prior to this verdict, the person facing sexual harassment at workplace had to
lodge a complaint under Section 354 or 509 of the Indian Penal Code .
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Why should employers be compliant to the act?
4 Key steps to be compliant with the law
Sexual Harassment Policy creation compliant to the act – detailing the
Employee and Employers roles and responsibilities; Complaint and Redressal
mechanisms
Internal Complaints Committee setup as per guidelines and should be
equipped to handle complaints after thorough investigation and recommend
actions to be taken
Employee awareness on the act, Complaints and Redressal mechanisms as
detailed in the policy
Statutory reporting of the cases filed and action taken should be reported and
filed in the Company’s annual report
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PoSH Annual report filing Simplified
Annual Report filing is becoming a big discussion point at all our Internal
Committee meets as there is a lot of ambiguity among HR leaders, Compliance
Officers about how to go about it. I thought of putting it down clearly so
employers are clear about their roles in being compliant.
As per Prevention of Sexual Harassment Act, 2013, there are 2 reports to be
submitted by the employer:
Report 1: It is the duty of the ICC to submit an annual report, which includes
the number of cases filed/disposed of every calendar year to the employer and
district office.
Section 21 – Internal Committee to submit annual report:
As per the Act – “(I) The Internal Committee or the Local Committee shall in
each calendar year prepare, in such form and when may be prescribed, an
annual report and submit the same to the employer and the District Officer.
(2) The District Officer shall forward a brief report on the annual reports
received
The Act mandates submission of an Annual Report by the ICC/LCC to the
employer/District Officer. The District Officer will forward a brief report on the
annual reports to the appropriate State Government. Such reports must
include the following information:
1. No. of complaints received;
2. No. of complaints disposed of;
3. No. of cases pending for more than 90 days;
4. No. of workshops/awareness programmes carried out;
5. Nature of action taken by the employer/DO;
The Report of ICC will be forwarded to the DO through the employer.
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For a copy of the Annual report template and the district officer list, write to us
at [email protected] and we would be glad to help!
Section 22 – Employer to include information in the Annual report
As per the Act – “The employer shall include in its report the number of cases
filed, if any, and their disposal under this Act in the annual report of his
organisation or where no such report is required to be prepared, intimate such
number of cases, if any, to the District Officer.”
Report 2: The employer has a statutory obligation to ensure this report is
included in the annual report of the organization filed to the Registrar of
companies.
The latest Director’s Report submitted under the Companies Act has a section
to capture the compliance to the PoSH Act, 2013. This report is filed along with
the Annual returns to the Registrar of companies. Unfortunately, many
Auditors and Directors are not aware of this latest report or end up filling this
section as Nil while submitting this. Director’s report as part of the Annual
Report /Annual returns Filing is filed to the Registrar of Companies.
The latest Director’s Report for FY 15-16 Submitted under the Companies Act
has the below section:
DISCLOSURE UNDER THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE
The Company has in place an Anti-Sexual Harassment Policy in line with the
requirement of the Sexual Harassment of Women at the Workplace Act 2013.
Internal Complaints Committee (ICC) has been set up to redress complaints
received regarding sexual harassment. All employees (Permanent, Contractual,
Temporary, Trainees) are covered under this policy.
The following is the summary of sexual harassment complaints received and
disposed of during the year 2016-2017.
• No. of Complaints received during the year:
• No. of Complaints disposed of during the year:
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Section 23 – State Government to track and maintain the data
As per the Act – “The appropriate Government shall monitor the
implementation of this Act and maintain data on the number of cases filed and
disposed of in respect of all cases of sexual harassment at workplace.”
This data is closely tracked and monitored by all the district officers and is
consolidated by the Ministry of WCD.
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Penalty for Non-Compliance
An employer can be subjected to a penalty of up to INR 50,000 for
• Failure to constitute Internal Complaints Committee
• Failure to act upon recommendations of the Complaints Committee; or
• Failure to file an annual report to the District Officer where required; or
• Contravening or attempting to contravene or abetting contravention of the
Act or Rules.
Where an employer repeats a breach under the Act, they shall be subject to:
• Twice the punishment or higher punishment if prescribed under any other
law for the same offence.
• Cancellation/Withdrawal/Non-renewal of registration/license required for
carrying on business or activities.
Monitoring is a critical yardstick to measure success in terms of compliance
with the Act. Additionally, it highlights those areas, in terms of law and
practice, which may require improvement and/or additional information and
guidance at both the State as well as the workplace levels.
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If you are victim, how to deal with Sexual Harassment
In my workshops, this is one of the most common question that people ask
me. Not in the crowd but during the breaks or at the end of the session as an
offline question, listing some of the common tips as below.
• Make it clear to the harasser that you consider the behaviour as harassment.
• Say a firm ‘NO’ and tell the person to stop contacting you.
• Stop answering the person’s calls, emails, and other messages.
• Delete or mark the number as spam in your phone and social media
accounts.
• Inform your friends and family what’s going on.
• Don’t publicize your location and daily habits.
• Keep records and evidences.
• Talk to the HR, Internal Complaints Committee or Harassment cell at your
institution or workplace.
• If you work in an unorganized sector or organisation with less than 10
employees, then reach out to the Local Complaints Committee.
If it is a rape or an assault or any form of criminal act, then a Police complaint
needs to be lodged under the Indian Penal Code.
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Will I lose my job?
No. you won’t. This is the first thought that crosses our mind when we are in a
dilemma – whether or not to complain about harassment we encounter at the
work. Our country has legislations and rules to combat sexual harassment and
it is our duty to foster change in our workplaces by using these instruments of
law.
While the law only protects women, companies should take a unified stand to
protect all its employees from any form of Sexual Harassment at the
workplace. Some of the big MNCs have already taken this plunge.
Why should I complain?
Because harassment is not ok – It’s as simple as that!
In the Indian culture, women who stand up for their rights are blatantly
conferred on the title of a feminist. It’s time to change such deep-rooted
misconceptions. As an Indian citizen we have rights and it’s time to exercise
these duties (as much as it is a right!).
What do you do when you know you have been harassed?
As soon as an incident occurs, note down the time and date at which it
happened. CCTV footage could be checked according to that. If you feel
someone else saw the incident, talk to them and ask them to stand by you
when you approach the Internal Committee (IC).
If a person at your workplace sends vulgar jokes or pornography which makes
you uncomfortable, you should first ask him/her to stop in a gentle yet firm
manner. A common myth among Indian men is that when a woman says ‘No’,
its actually not so.
Tell the person that when you say ‘No’, you mean it.
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However, if they continue to send inappropriate messages, take the matter to
the IC. In this case make sure you don’t delete the messages. Any email or
message which substantiates harassment is evidence.
Be Cautious.
When you approach the harasser, don’t go alone. Ask someone you trust to
come along with you and it’s better not to get into a threatening mode (after
all he/she is your colleague)but make the point clear in a firm manner that if
he/she continues such behaviour you will have to approach the IC regarding
the matter. Be cautious as to who you reveal the details of the incident to. A
little caution never hurts!
Be tactful.
The law doesn’t say this, but a prudent man would! Be sure you know the law
and the policy of the organization regarding sexual harassment. You should be
aware of the procedures followed and steps taken.
A word of caution.
Just because you don’t like what a person says or does, it won’t amount to
harassment. Sexual Harassment should be behaviour that is sexual in nature
and unwelcome.
A Victim but not victimized.
Try to have your friends and people who you trust to be with you. Be aware.
Awareness is indispensable. It’s good to have the support of friends,
colleagues, supervisors and mentors. You don’t have to tackle the whole world
by yourself. We all need each other.
Stand up for you colleagues.
If you notice your colleague being harassed, don’t just stand by and watch. If
the victim is upset or worried, lend a helping hand and encourage them to
report the matter to the IC. Laws and rules are there to protect us but you
need to be humane and your encouragement and support would mean a lot to
the person going through crisis.
A word to employers
Take a conscious effort to make your employees aware of the law and policies
of the organization. If your organization employs contract workers and others
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who are not familiar with English language, make communication available in
the vernacular language so that they are also assured that they are in a safe
working environment.
Try to bring about a change in the attitude towards harassment as a whole. In
our culture we tend to hush up such things because it’s considered taboo and
we just move on without resolving issues. Bring it out in the open. Have
posters in your workplace which will remind employees of the policies
regarding harassment at the workplace. You could even do case studies twice
year or share them more frequently and involve the employees so that they
are more aware and can get them thinking.
Conducting surveys is also a very important step. If you have a high number of
harassment incidents at your workplace, it means you are not talking about it
and if there are absolutely no incidents being reported that is also risky, make
sure your employees are aware of what sexual harassment is and whom to
approach in such cases. The more you talk about sexual harassment at the
workplace, the more understanding the employees will have and when there is
more understanding there is empowerment.
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Role of Internal Committee at Workplace
As per the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013, the role of the Internal Committee (IC) is
defined as below:
• Shall provide assistance to the victim to make the complaint in writing.
• Complaints need to be filed within 3 months from the last incident
occurrence date. IC may extend the time limit by another 3 months.
• Before initiating an inquiry, at the request of the aggrieved woman, IC must
take steps to settle the matter through conciliation.
• Shall recommend action during pendency of inquiry like granting leave or
transferring either the victim or respondent.
• If IC arrives at the conclusion that the allegation against the respondent has
not been proved, it shall recommend to the employer that no action is
required.
• If IC arrives at the conclusion that the allegation against the respondent has
been proved, it shall recommend to the employer:
• To take action for sexual harassment as a misconduct in accordance with
the provisions of the service rules applicable to the respondent or where
no such service rules have been made, in such manner as may be
prescribed.
• To deduct, notwithstanding anything in the service rules applicable to the
respondent, from the salary or wages of the respondent such sum as it may
consider appropriate to be paid to the aggrieved woman or to her legal
heirs.
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What if the witness refuses to speak in an Internal Committee
inquiry?
Problem Statement:
As per CCTV evidence and the victim’s statements a witness was present when
the incident occurred. But the witness feigns ignorance. This witness’s
testimony is very crucial to the case. As an IC member, is there any action that
can be taken?
Witness’s Right to silence.
The Constitution of India guarantees every person right against self-
incrimination under Article 20 (3): “No person accused of any offence shall be
compelled to be a witness against himself”. It is well established that the Right
to Silence has been granted to the accused by virtue of the pronouncement in
the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract
statements from the accused, who has the right to keep silent, but only in the
court of law. It is not clear if the accused can exercise his right to silence during
interrogation by public servants. Interrogation techniques like narco-analysis,
brain mapping and lie detection nullify the validity and legitimacy of the Right
to Silence. But in 2010, the Supreme court found that narco-analysis, brain
mapping and lie detector tests violate Article 20(3).
Reasons for witness to turn hostile or stay silent:
At the workplace, the reasons for a witness to turn hostile may be:
• Fear of retaliation.
• Fear of losing their job.
• Threat by the accused.
• Lack of awareness of the policy or process.
• Lack of trust in the committee or management.
• Absence of Witness Protection.
• Prolonged trials.
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Hostile Witnesses: Judicial Remedy
For a situation like the Jessica Lal case, where witnesses refused to support the
prosecution’s case, the committee has suggested the following measures:
1. Holding in-camera proceedings
2. Taking measures to keep identity of witness’s secret
3. Ensuring anonymity
4. Making arrangements to ensure their protection
5. Witnesses should be treated like guests of honour
6. They should be adequately compensated for spending money on travel and
accommodation
7. Comfort, convenience and dignity of witness/es while giving their
statements in the court of law, should be ensured
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Unravelling the Intricacies of the Anti-Sexual Harassment Act
In recent years, managing a globally diverse workforce has transformed
organizational dynamics to a great extent. One of the key focus areas for
Indian companies is keeping the workplace secure for its employees, especially
women. A safe workplace is every employee’s legal right, and organizations are
mandated to give this security.
As a leader of your organization, I am sure you believe in this too. Most leaders
believe in running an ethical organization with a strong code of behaviour
regarding safety and anti-harassment, including sexual harassment. I am sure
your organization even has a policy incorporating the Vishakha guidelines.
And so you may ask, do I really need to take note of Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act 2013? My
intent is clear, my actions are clear – so do I have to really?
The answer is a resounding YES. And yes on many counts.
Firstly, on the aspects of the law. To cite a few,
It is mandatory for your organization to form an Internal Complaints
Committee if you have more than 10 people .
Your organization is duty-bound to provide assistance to your employee if she
wishes to file a complaint under the Indian Penal Code.
Upon the request of the aggrieved employee, your organization needs to
provide relief (such as grant leave for a period of up to 3 months or transfer
the victim or the alleged harasser to another location).
Secondly, on the implications of the Act. To name a few,
How do I establish an Internal Complaints Committee? Who shall be its
members?
What are the organization’s accountabilities?
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What are the elements of a grievance redressal mechanism that must be in
place?
How will my organization be deemed compliant in terms of policy, awareness
programs and processes?
Answers to these questions carry shades and nuances, all inextricably linked to
the Act that is unforgiving of lapses. And rightly so. It is time for your
organization to seriously revisit its intent, its policies, its processes and yes,
perhaps even its culture.
When you do, some of the critical implications can overwhelm you.
My organization has a committee with committed senior members. Is that
enough? Or not?
My organization has multiple offices – how should I handle it for each of them?
Is a gender-neutral policy enough? Or should my organization draft a new
policy specifically for women employees?
If the aggrieved employee is a man, can he appeal under this Act? Can all the
provisions of the Act be still invoked, both from a legal and moral standpoint?
Does the Act require specific documentation and reporting requirements?
Believe me this is but a sample. Many more questions will cascade.
To finally, the million-dollar question – Can anyone help us ensure that our
intent and outcome match?
It is a good idea to take the help of an expert. Look for someone whose
expertise and experience amalgamates both human resources and legal
compliance. Look for consultants who carry authentic credentials of leading
organizations, of leading HR functions and of leading program delivery. Give
them their due, and they will give you the guarantee of results.
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CONCLUSION: The Act has helped to create a healthy and safe environment which would
bring a tremendous change in the workplace where it would help weed out the
mindset that women are inferior to men.
Is your organisation compliant to the sexual harassment Act? If not, visit
www.kelphr.com
Mail us @ [email protected]
Call us @ 9500129652
